Citation Nr: 9832110
Decision Date: 10/29/98 Archive Date: 11/03/98
DOCKET NO. 96-35 181 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to improved disability pension benefits earlier
than March 1, 1995, based on 1994 unreimbursed medical
expenses first reported in February 1995.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Jeffers, Associate Counsel
INTRODUCTION
The appellant is the surviving spouse of the veteran who
served on active duty from November 1940 to August 1945. The
veteran died in February 1969.
In March 1993, the North Little Rock, Arkansas, Department of
Veterans Affairs (VA), Regional Office (RO), terminated the
appellant’s improved disability pension benefits, effective
January 1, 1993, because her total annual income, derived
from the Social Security Administration (SSA) and interest
income, exceeded the maximum annual pension rate allowed by
law.
This appeal arose from a May 1995 decision of the RO which
denied entitlement to improved disability pension benefits
earlier than March 1, 1995, based on 1994 unreimbursed
medical expenses first reported in February 1995. The
appellant filed a timely notice of disagreement, and was
issued a statement of the case in July 1996. In November
1996, the appellant offered her contentions at a personal
hearing before the Hearing Officer (HO) at the RO. The HO
confirmed and continued the denial of the benefit sought by
supplemental statement of the case issued in December 1996.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in essence, that she is entitled to
improved disability pension benefits earlier than March 1,
1995, as she timely reported her 1994 unreimbursed medical
expenses.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the award of improved
disability pension benefits is effective from January 1,
1994.
FINDINGS OF FACT
1. In March 1993, the appellant’s improved disability
pension benefits were terminated, effective January 1, 1993,
because her total annual income, derived from the SSA and
interest income, exceeded the maximum annual pension rate
allowed by law.
2. The termination notice letter informed her that “[i]f
there is a reduction in income and you reopen your claim
please complete the enclosed VA Form 21-0158-1, showing
income received and expected for 12 months following
termination and for the following 12 month period.”
3. In February 1995, the RO received the appellant’s VA Form
21-0158-1, Improved Pension Eligibility Verification Report
(Surviving Spouse with no Children), which detailed her
unreimbursed medical expenses paid in the calendar year 1994.
4. In September 1995, the RO reinstated the appellant’s
improved disability pension benefits, effective March 1,
1995.
5. Satisfactory evidence of unreimbursed medical expenses
paid during the annualization period running from January 1
to December 31, 1994, was received within the “next calendar
year,” specifically, in February 1995, with the receipt of
her Form 21-0518-1.
CONCLUSION OF LAW
Legal entitlement under the law to improved disability
pension benefits effective from January 1, 1994, is
established. 38 U.S.C.A. § 5110(h) (West 1991); 38 C.F.R.
§ 3.660(b)(1) (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant elected to receive improved disability pension
benefits in February 1989, and an award for the same was
granted effective March 1, 1989. As noted above, a March
1993 letter from the RO informed the appellant that her
improved disability pension benefits were terminated,
effective January 1, 1993, because her total annual income,
derived from the SSA and interest income, exceeded the
maximum annual pension rate allowed by law. The letter also
informed her that, “[i]f there is a reduction in income and
you reopen your claim please complete the enclosed VA Form
21-0158-1, showing income received and expected for 12 months
following termination and for the following 12 month
period.”
The RO received the appellant’s VA Form 21-0158-1 on February
28, 1995, which detailed unreimbursed medical expenses paid
by her during the calendar year 1994. In September 1995, the
RO reinstated her improved disability pension benefits,
effective March 1, 1995, based on her countable annual income
of $6,696 less $3,000 paid for medical expenses.
Under the applicable criteria, there will be excluded from
the amount of a death pension recipient’s countable annual
income any unreimbursed amounts which have been paid within
the 12-month annualization period for medical expenses
regardless of when the indebtedness was incurred.
Unreimbursed medical expenses will be excluded when certain
requirements are met, including that they were paid by a
surviving spouse for medical expense of the spouse and they
will be in excess of five percent of the applicable maximum
annual pension rate for the spouse, but excluding increased
pension because of need for aid and attendance or being
housebound, as in effect during the 12-month annualization
period in which the medical expenses were paid. 38 C.F.R.
§ 3.272(g)(2) (1998). Where pension was not paid for a
particular 12-month annualization period because the claim
was disallowed, an award was deferred under applicable
regulations, payments were discontinued or made at a lower
rate based on anticipated or actual income, benefits
otherwise payable may be authorized commencing the first of a
12-month annualization period. In all other cases, benefits
may not be authorized for any period prior to the date of
receipt of a new claim. 38 C.F.R. § 3.660(b) (1998). Where
payments were not made or were made at a lower rate because
of anticipated income, pension may be awarded or increased in
accordance with the facts found but not earlier than the
beginning of the appropriate 12-month annualization period if
satisfactory evidence is received within the same or the next
calendar year. 38 C.F.R. § 3.660(b)(1) (1998).
In the instant case, the appellant offered her contentions at
a personal hearing before the HO at the RO in November 1996.
She testified that the time period for reporting income and
expenses has historically been from March 1 of the current
year to February 28 or 29 of the following year, and that she
was unaware of the regulatory change that required her to
report the same on a calendar year basis (January 1 to
December 31). Therefore, she believed that she had until
February 28, 1995, within which to reopen her claim.
However, the evidence of record discloses that the March 1993
termination letter specifically informed the appellant that,
“[i]f there is a reduction in income and you reopen your
claim please complete the enclosed VA Form 21-0158-1, showing
income received and expected for 12 months following
termination and for the following 12 month period.”
(Emphasis added). Her benefits were terminated effective
January 1, 1993, and hence, she was on record notice at that
time that the following 12 month period would run from
January 1 to December 31. Hence, she had until January 1,
1995, to file a claim to reinstate her award for the year
1993. No claim for an award of death pension benefits based
on a change in income or unreimbursed medical expenses paid
in 1993 was received as of January 1, 1995. However, she
filed a claim for medical expenses paid in 1994 in February
1995. Therefore, the Board construes the “appropriate” 12-
month annualization period as that term is used under 38
C.F.R. § 3.660(b)(1) as the calendar year 1994 because that
was the year those expenses were paid and for which the
appellant claims she was entitled to death pension benefits.
As such, the Board finds that on the facts found herein,
legal entitlement to these benefits is appropriately
effective from January 1, 1994. Under 38 C.F.R.
§ 3.660(b)(1), satisfactory evidence of such expenses for the
annualization period running from January 1 to December 31,
1994, was received within the “next calendar year,”
specifically, in February 1995, with the receipt of her Form
21-0518-1. Therefore, she was entitled to death pension
benefits for the 12-month annualization period in 1994.
ORDER
Entitlement to improved disability pension benefits effective
from January 1, 1994, is granted.
CHRISTOPHER P. KISSEL
Acting Member, Board of Veterans’ Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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